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2d 557
Judy S. Hoyer, Asst. U.S. Atty., Roberta M. Klosiewicz, Tampa, Fla., for
plaintiff-appellee.
Appeal from the United States District Court for the Middle District of
Florida.
Before RONEY, Chief Judge, HILL and KRAVITCH, Circuit Judges.
PER CURIAM:
Fischer pled guilty to three counts of wire fraud, 18 U.S.C.A. Sec. 1343, and
received sentences totaling four years of imprisonment, plus five years of
probation. Approximately ten months after sentencing, Fischer filed his
motions asserting a Fed.R.Crim.P. 32 violation. Specifically, Fischer alleged
that the PSI report contained a victim impact statement from E.F. Hutton,
Fischer's former employer, which included significant misstatements of fact and
that the PSI report improperly contained references to amounts of money he
fraudulently acquired that exceeded the amounts for the offenses to which he
had plead guilty. The motion claimed that the sentencing judge failed to follow
Rule 32 provides the procedures for sentencing and for the making of a
presentence report, and outlines the matters that must be considered by a district
court in fixing a criminal sentence. This Court has never addressed the question
of whether a district court has jurisdiction to grant relief on a motion brought
solely pursuant to Fed.R.Crim.P. 32 as an attack on one's sentence after
sentence has been imposed.
One court has held that Fed.R.Crim.P. 32 does not provide any jurisdiction for
a district court to hear such a motion. United States v. Burkhead, 567 F.Supp.
1425, 1427 (W.D.Mo.1983) ("Rule 32(c) does not vest this Court with
jurisdiction to grant the relief sought by [defendant's motion to correct his PSI
report]"). Other courts appear to agree. See, e.g. United States v. Ursillo, 786
F.2d 66 (2d Cir.1986) ("We have found no reported case in which a court held
that Rule 32 standing alone furnished the jurisdictional basis for a belated postsentencing attack on the accuracy of a presentence report."); United States v.
Williams, 618 F.Supp. 1419, 1420 (E.D.Va.1985) (court did not believe that
Rule 32(c)(3)(D) provided a post-sentencing vehicle to correct a PSI report),
aff'd, 785 F.2d 306 (4th Cir.1986). Cf. United States v. Leath, 711 F.2d 119
(8th Cir.1983).
We hold that Fed.R.Crim.P. 32, standing alone, does not provide the district
court with jurisdiction to hear a motion making a post-judgment collateral
attack on one's sentence for a Rule 32 violation.
Accordingly, the case is remanded to the district court to dismiss for lack of
Accordingly, the case is remanded to the district court to dismiss for lack of
jurisdiction, or permit Fischer to amend to assert a Sec. 2255, as may be
deemed appropriate.
REMANDED with instructions.